Case Name: Mohammad Akhtar v. Corwil Technology Corporation, et al.
Case No.: 16-CV-301309

Currently before the Court is the motion by defendants Corwil Technology Corporation (“Corwil”) and Matt Bergeron (“Bergeron”) (collectively, “Defendants”) for summary judgment of the second amended complaint (“SAC”) of plaintiff Mohammad Akhtar (“Plaintiff”) or, in the alternative, summary adjudication of each and every one of Plaintiff’s claims.

Factual and Procedural Background

This is an action for employment discrimination and wrongful termination. Corwil “provides semiconductor assembly and test services to customers worldwide.” (SAC, ¶ 3.) Bergeron is the President of Corwil. (Id., at ¶ 4.) He allegedly had the “authority to hire, transfer, and discharge employees” and “broad discretionary authority over decisions” regarding Corwil’s policies. (Ibid.)

Plaintiff was hired by Corwil on September 21, 2015. (SAC, ¶ 7.) Plaintiff was hired as part of the sales team and reported directly to the Vice President of Sales and Marketing. (Ibid.) In addition, Bergeron “had the power to direct Plaintiff’s work activities ….” (Id., at ¶ 4.) Corwil allegedly told Plaintiff “that he would be promoted to Vice President of Operations within the first three months of his employment.” This representation “was an import factor” in Plaintiff’s decision to accept the position at Corwil. (Ibid.)

“On or about the same day Plaintiff was hired, he was introduced to [Bergeron].” (SAC, ¶ 9.) Bergeron “immediately asked Plaintiff: ‘Do you have a problem with Israel?’ ” (Ibid.) “Plaintiff felt demeaned by the hostile inquiry and promptly responded ‘no.’ ” (Ibid.) Plaintiff is Muslim and “believed that [Bergeron] knew [he] was Muslim because of his name.” (Ibid.)

Shortly after he was hired, Plaintiff began working with Intel Corporation (“Intel”), one of Corwil’s clients. (SAC, ¶ 10.) Plaintiff developed a strong relationship with Intel’s team and Intel was pleased with his service and performance. (Ibid.) However, Intel was dissatisfied with the service provided by Corwil’s technical team. (Ibid.) Bergeron allegedly authorized late shipments of unsatisfactory product to Intel such that Intel ultimately refused to pay. (Ibid.) Plaintiff alleges that Bergeron “appeared to be dismissive of Intel’s needs and [undermined his] ability to do his job, reflecting negatively on [his] perceived job performance.” (Ibid.)

After working for Corwil for three months, Plaintiff was not promoted even though he was “fully qualified and prepared to assume the position of Vice President of Operations.” (SAC, ¶¶ 13 and 17.)

During Plaintiff’s employment at Corwil, Bergeron allegedly “engaged in a pattern of discrimination against Plaintiff and created a hostile work environment.” (SAC, ¶ 11.) For example, Bergeron did not allow Plaintiff to serve employees at Corwil’s Thanksgiving dinner in November 2015, even though he asked other managers to participate in the serving process. (Ibid.) Additionally, Bergeron micromanaged Plaintiff’s work. (Id., at ¶ 12.)

Plaintiff further alleges that Bergeron made “insensitive and discriminatory comments to [him] in front of his co-workers, creating a hostile and abusive work environment.” (SAC, ¶ 14.) “[O]n or around February 2, 2016, during a sales meeting with Plaintiff and several other [Corwil] employees …, [Bergeron] said to a group of employees: ‘Ship the product to the University of Sharjah before they send suicide bombers.’ ” (Ibid.) Plaintiff “was offended by [the] comment” and “made [Bergeron] aware of that fact”; however, Bergeron “shrugged his shoulders and offered no apology.” (Ibid.)

Shortly after Plaintiff “expressed his feelings about the ‘suicide bomber’ comment,” Bergeron retaliated against Plaintiff by terminating him “despite his excellent job performance and the objection of [his] manager.” (SAC, ¶¶ 15-16.)

As a result of Defendants’ alleged conduct, Plaintiff suffered “severe and/or extreme emotional distress and emotional injuries, including humiliation, anguish, embarrassment, and undue stress.” (SAC, ¶ 18.)

Based on the foregoing allegations, Plaintiff filed the operative SAC against Defendants, alleging causes of action for: (1) discrimination based on religion in violation of the Fair Employment and Housing Act (“FEHA”) (against Corwil); (2) retaliation in violation of the FEHA (against Corwil); (3) hostile work environment harassment in violation of the FEHA (against Defendants); (4) failure to prevent discrimination and harassment in violation of the FEHA (against Corwil); (5) wrongful termination in violation of the FEHA (against Corwil); (6) wrongful termination in violation of public policy (against Corwil); (7) wrongful termination in violation of public policy (against Corwil); (8) failure to promote in violation of public policy (against Defendants); and (9) intentional infliction of emotional distress (“IIED”) (against Defendants).

Defendants filed a joint answer to the SAC, generally denying the allegations of the SAC and alleging various affirmative defenses.

On December 20, 2017, Defendants filed the instant motion for summary judgment or, alternatively, summary adjudication. Plaintiff filed papers in opposition to the motion on March 15, 2018. On March 23, 2018, Defendants filed a reply.

Discussion

Pursuant to Code of Civil Procedure section 437c, Defendants move for summary judgment of the SAC or, in the alternative, summary adjudication of each and every one of Plaintiff’s claims.

I. Evidentiary Objections

In his opposing memorandum of points and authorities and responding separate statement, Plaintiff objects to some of the evidence offered by Defendants in support of their motion. (See P’s Opp’n., pp. 13:9-16 and 14 at fn. 5; see also P’s Resp. Sep. Stmt., Undisputed Material Fact (“UMF”) Nos. 32, 34-35, 38, 96, 98-99, 102, 159, 161-162, 165, 222, 224-225, 228, 285, 287-288, and 291.)

Plaintiff’s objections are procedurally improper because they are not set forth in a separate document. (See Cal. Rules of Ct., rule 3.1354(b) [all written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion].) Furthermore, Plaintiff failed to provide the Court with a proposed order for his evidentiary objections. (See Cal. Rules of Ct., rule 3.1354(c) [a party must provide a proposed order that complies with one of the formats described in the rule].)

Because Plaintiff’s evidentiary objections do not comply with the California Rules of Court, the Court declines to rule on the objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

II. Legal Standard on Motions for Summary Judgment and/or Adjudication

The pleadings limit the issues presented for summary judgment or summary adjudication, and such a motion cannot be granted or denied on issues not raised by the pleadings. (Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) A defendant seeking summary judgment or summary adjudication “must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).) “ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted; see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132; see also Intrieri v. Super. Ct. (2004) 117 Cal.App.4th 72, 82.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (See Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) The motion may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. (Hepp v. Lockheed-California Co. (Hepp) (1978) 86 Cal.App.3d 714, 717-718 (Hepp).) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment or adjudication on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp, supra, 86 Cal.App.3d at p. 717.)

III. Analysis

A. First and Fifth Causes of Action

In the first cause of action for discrimination based on religion in violation of the FEHA, Plaintiff alleges that “Defendants wrongfully discriminated against [him] with a series of individual and/or collective acts, including, and not limited to, denial of job opportunities and advancements and termination.” (SAC, ¶ 23.) He further alleges that “Defendants discriminated against [him] on the basis of religion because they knew or perceived him to be Muslim and questioned whether he had a ‘problem’ with Israel, refused to allow him – and only him – to serve employees at a company dinner, made comments regarding suicide bombers, and refused to address or respond to his objections regarding Defendants’ discriminatory comments and actions.” (Ibid.) Plaintiff alleges that his religion was “[a] motivating factor in Defendants’ decision to refuse to promote and to terminate [him] ….” (Ibid.)

In the fifth cause of action for wrongful termination in violation of the FEHA, Plaintiff alleges that his religion was the motivating reason for his termination and Defendants “refused to promote him with the support and recommendation of his direct manager, and despite his clear qualifications for the position, because of his religion.” (SAC, ¶¶ 61-62.)

Defendants contend that the first and fifth causes of action fail as a matter of law because: (1) Plaintiff cannot establish a prima facie case of discrimination based on religion where the same actor doctrine applies; (2) Corwil had a legitimate, non-discriminatory reason for Plaintiff’s termination; and (3) Plaintiff has not presented substantial evidence that Corwil’s reason for his termination was a pretext. (Ds’ Mem. Ps. & As., pp. 8:15-17, 9:15-17, and 10:8-10.)
1. Same Actor Doctrine

Defendants argue that Plaintiff cannot establish that his termination was motivated by discriminatory animus (i.e., Plaintiff cannot establish a prima facie case for discrimination in violation of the FEHA) because the undisputed evidence shows that the same actor doctrine applies. (Ds’ Mem. Ps. & As., pp. 8:15-9:15.) Defendants’ undisputed material facts and evidence demonstrate that: Bergeron interviewed Plaintiff and prepared his job description; Bergeron made the decision to hire Plaintiff; Plaintiff was hired on or about September 21, 2015; Bergeron believe that Plaintiff was Muslim when he hired Plaintiff; and Bergeron terminated Plaintiff on or about April 13, 2016. (UMF Nos., 1-8 and 59.) Thus, Defendants establish that the same actor, Bergeron, was responsible for both the hiring and firing of Plaintiff, and both actions occurred within six months of each other.

However, Defendants’ argument—that Plaintiff cannot establish that his termination was motivated by discriminatory animus simply because the same actor doctrine applies—is not well-taken. The same actor doctrine merely provides that “… where the same actor is responsible for both the hiring and firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809 (Horn), italics added, quoting Bradley v. Harcourt, Brace and Co. (1996) 104 F.3d 257, 270-271.) “Although providing a strong inference of nondiscrimination, the same-actor presumption is not irrebuttable.” (Horn, supra, 72 Cal.App.4th at p. 810; see Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 937 (Cornell) [the same-actor inference has lost some of its persuasive appeal in recent years and is not entitled to great weight]; see also Husman v. Toyota Motor Credit Corporation (2017) 12 Cal.App.5th 1168, 1188 [same].) Thus, even though Defendants demonstrate that the same actor was responsible for Plaintiff’s hiring and firing, this fact—standing alone—fails to establish that Plaintiff cannot prove, as a matter of law, that his termination was motivated by discriminatory animus.

In light of the foregoing, Defendants fail to meet their initial burden to show that Plaintiff cannot establish a prima facie case for discrimination in violation of the FEHA.

2. Legitimate, Non-Discriminatory Reason

Defendants argue that they had a legitimate, non-discriminatory reason for Plaintiff’s termination because “Bergeron terminated [Plaintiff] due to poor performance.” (Ds’ Mem. Ps. & As., p. 10:5-8.) In support of their argument, Defendants offer undisputed material facts and evidence showing that: Bergeron received complaints about Plaintiff’s performance and lack of effort from other Corwil employees; Bergeron informed Plaintiff’s manager of negative feedback that he received from the sales force about Plaintiff; Plaintiff’s manager sent Plaintiff to training and recommended that Plaintiff read a Microsoft Excel book because his skills were subpar; Plaintiff began job searching within three weeks of his date of hire; and Plaintiff submitted 33 resumes during his six months of employment with Corwil. (UMF Nos. 19-20, 22-24, 32, 34, 36-37, 87-89.)

Defendants’ undisputed material facts and evidence are insufficient to meet their initial burden because they do not demonstrate that Bergeron terminated Plaintiff because of, or due to, his poor performance. (See Board of Trustees v. Sweeney (1978) 439 U.S. 24, 25 [“[T]he employer’s burden is satisfied if he simply ‘explains what he has done’ or ‘[produces] evidence of legitimate nondiscriminatory reasons.’ ”].) None of the undisputed material facts provide that Bergeron terminated Plaintiff due to his poor performance. Moreover, even though Defendants submit a declaration from Bergeron in support of their motion, Bergeron does not declare that he terminated Plaintiff because of Plaintiff’s poor job performance.

Consequently, Defendants fail to establish that there was a legitimate, non-discriminatory reason for Bergeron’s decision to terminate Plaintiff’s employment.

3. Pretext

Defendants argue that Plaintiff does not have substantial evidence that the proffered reason for his termination was a pretext.

However, because Defendants have not met their burden by showing a legitimate, non-discriminatory reason for their conduct, Plaintiff is not required to demonstrate a triable issue by producing substantial evidence that Defendants’ stated reasons were untrue or pretextual, or that the Defendants acted with a discriminatory animus. (See DeJung v. Super. Ct. (2008) 169 Cal.App.4th 533, 553 [“If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.”], internal citations omitted.)

4. Conclusion

Given that Defendants fail to meet their initial burden with respect to the first and fifth causes of action, they are not entitled to summary judgment of the SAC or summary adjudication of the first and fifth causes of action. Accordingly, Defendants’ motion for summary judgment of the SAC and summary adjudication of the first and fifth causes of action is DENIED.

B. Second Cause of Action

In the second cause of action for retaliation in violation of the FEHA, Plaintiff alleges that he “engaged in the protected activity of asserting his legal rights to be free of racial discrimination and harassment and adverse employment action based on religion,” and “Defendants retaliated against [him] because he opposed discrimination and harassment in the workplace ….” (SAC, ¶¶ 31-32.) Specifically, Plaintiff alleges that Defendants refused to promote him and terminated him because of his complaints about discrimination and harassment. (Id., at ¶¶ 32-33, 35-36.)

With respect to the second cause of action, Defendants’ argument is as follows:

The same[ ] McDonnell Douglas burden-shifting framework applies to Plaintiff’s second cause of action for retaliation under the FEHA. [Citation.] Akhtar claims that he was retaliated against because, “he opposed discrimination and harassment in the workplace by Defendants engaging in a course of conduct in violation of Govt. Code § 12940(h).” [Citation.] Accordingly, the same analysis and defenses stated in response to Akhtar’s FEHA discrimination causes of action, namely the Same Actor Doctrine, apply to Akhtar’s FEHA retaliation claim. For the reasons stated in response to Akhtar’s discrimination claim, [Corwil] is entitled to judgment as to this cause of action.

(Ds’ Mem. Ps. & As., p. 13:8-17.) Thus, the motion with respect to the second cause of action is based on the same arguments that Defendants offered in connection with the first and fifth causes of action.

For the reasons stated above, Defendants’ arguments with respect to the first and fifth causes of action lack merit and Defendants fail to meet their initial burden. Therefore, Defendants also fail to meet their initial burden as to the second cause of action.

Accordingly, Defendants’ motion for summary adjudication of the second cause of action is DENIED.

C. Third Cause of Action

In the third cause of action for hostile work environment harassment in violation of the FEHA, Plaintiff alleges that he was subjected to unwanted harassing conduct because he is a Muslim. (SAC, ¶ 43.) The harassing conduct was allegedly “severe and/or pervasive, and was performed by a supervisor in front of his subordinates and Plaintiff’s co-workers.” (Ibid.) Specifically, Plaintiff alleges that “Defendants harassed [him] by questioning and harassing him about whether he had a ‘problem’ with Israel, excluding him from company events and activities open to all other employees of his level, and referring to ‘suicide bombers’ in front of [his] colleagues, and by executing against him punitive and adverse employment action, including refusal to promote and termination.” (Ibid.)

The FEHA prohibits harassment of an employee based on certain protected categories. (Gov. Code, § 12940, subd. (j)(1).) In order to establish a claim for harassment/hostile work environment, a plaintiff must demonstrate that: (1) he or she is a member of a protected group; (2) he or she was subjected to harassment because they belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121, 131.) The plaintiff must show a “concerted pattern of harassment of a repeated, routine or a generalized nature.” (Ibid.) “Courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial ….” (Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 283.)

Defendants argue that their alleged conduct does not rise to the level of conduct that was so severe it created a hostile work environment. (Ds’ Mem. Ps. & As., pp. 13:17-14:26.) Defendants assert that the harassment claim is insufficient to the extent it is based on Bergeron’s alleged statements (i.e., the question regarding Israel and the comment about suicide bombers) because occasional or sporadic remarks that are merely offensive are not sufficiently severe or pervasive. (Ibid.) Defendants further point out that the claim is otherwise based on management activities, such as Bergeron’s alleged micromanagement of Plaintiff. (Ibid.) Defendants assert that this alleged conduct does not constitute actionable harassment based on Plaintiff’s religion. (Ibid.) Defendants contend that there is no evidence that Bergeron’s micromanagement was based on Plaintiff’s religion. (Ibid.) Defendants also assert that Plaintiff received Corwil’s employee handbook, which contained its policies regarding discrimination and harassment and the procedures for reporting complaints, but “never provided any written complaints or sent any emails to anyone at [Corwil] indicating that he had been discriminated against, harassed, or retaliated angainst because he was Muslim.” (Ibid.)

As an initial matter, Defendants fail to explain why Plaintiff’s receipt of the employee handbook and the fact that he did not submit a written complaint to someone at Corwil defeats the third cause of action for harassment. Consequently, this point is deemed to lack merit. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Next, Defendants’ arguments regarding Bergeron’s alleged statements are not well-taken. “In many cases, a single offensive act by a coemployee is not enough to establish employer liability for a hostile work environment. But where that act is committed by a supervisor, the result may be different.” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36.) For example, courts have held that a single racial or ethnic slur by a supervisor in the presence of his subordinates is sufficient to alter the conditions of employment and create an abusive working environment. (Ibid.)

Here, Defendants’ undisputed material facts and evidence demonstrate that Bergeron was the President and Chief Executive Officer of Corwil; Bergeron allegedly asked Plaintiff if he had a problem with Israel on his first day of work; at a meeting attended by approximately 20 people, including Plaintiff, Bergeron allegedly said, “ship this product to University of Sharjah before they send the suicide bomber”; and Bergeron assumed or knew that Plaintiff was Muslim at the time he made the statements. (UMF Nos. 1, 4, 6, 13, and 52.) These remarks could be interpreted by a reasonable jury as hostility toward Plaintiff based on his Muslim religion. (See Rehmani v. Super. Ct. (2012) 204 Cal.App.4th 945, 955 (Rehmani) [remarks that Pakistan was a “messed up country” and questions about why the plaintiff and others did not do something about it could be interpreted as hostility toward the plaintiff based on his Pakistani background.].) Furthermore, although the second statement was allegedly directed to the meeting attendees at large, Plaintiffs’ underlying grievance is directed toward the expression of Bergeron’s general attitude toward Muslims, which created the hostile working environment that Plaintiff claims seriously affected his work performance and psychological well-being. (See ibid. [alleged conduct not directed specifically at the plaintiff was still relevant to show general hostile attitude toward members of plaintiff’s group, i.e. non-Indian engineers].)

Moreover, these alleged statements must be viewed in context with Bergeron’s other allegedly harassing conduct. (See Rehmani, supra, 204 Cal.App.4th at p. 951 [“Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances.”]; see also Cornell, supra, 18 Cal.App.5th at p. 941 [comments must be viewed in context with other allegedly harassing conduct, such as discriminatory official employment actions done in furtherance of a supervisor’s managerial role]; Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707-08 [“Although discrimination and harassment are separate wrongs, they are sometimes closely interrelated, and even overlapping, particularly with regard to proof. … [I]n some cases the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim. Moreover, in analyzing the sufficiency of evidence in support of a harassment claim, there is no basis for excluding evidence of biased personnel management actions so long as that evidence is relevant to prove the communication of a hostile message.”].) In addition to Bergeron’s statements, Plaintiff alleges that Bergeron refused to promote him, micromanaged him, excluded him from work events, and terminated him due to his Muslim religion. (UMF Nos. 26, 39-40, 42-43, 45, 50, 57, 59; SAC, ¶¶ 11-13, 15-17.) Many of Bergeron’s alleged official actions could be interpreted by a reasonable jury as enforcing the negative religion-based message his comments conveyed.

Furthermore, while Defendants assert in a conclusory manner that there is no evidence that Bergeron’s personnel management actions, i.e., micromanagement, were based on Plaintiff’s religion, they fail to “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855, italics added; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017), p. 10-104, ¶ 10:242, [“Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.”].)

Thus, Defendants’ evidence indicates that there is a triable issue of material fact as to whether the harassment was sufficiently severe or pervasive, based on Bergeron’s actions in combination with his comments communicating an offensive religion-based message.

Accordingly, Defendants’ motion for summary adjudication of the third cause of action is DENIED.

D. Fourth Cause of Action

In the fourth cause of action for failure to prevent discrimination and harassment in violation of the FEHA, Plaintiff alleges that “Defendants failed to exercise reasonable care to failure to prevent [Bergeron] from creating an environment within which Plaintiff was prevented from engaging in the protected activity of asserting his legal rights to be free of racial discrimination and harassment and adverse employment action based on religion.” (SAC, ¶ 52.) Corwil allegedly “participated in the creation of a hostile and intimidating environment, which, because of Plaintiff’s Muslim orientation and religious beliefs – and the perception of religious beliefs – they sided with [Bergeron] in harassing, refusing to promote, and terminating Plaintiff.” (Id., at ¶ 53.)

Defendants argue that Plaintiff cannot prevail on his fourth cause of action because he “fails to show that he was subjected to unlawful discrimination or harassment.” (Ds’ Mem. Ps. & As., p. 15:8-9 and 15-17.)

Defendants’ argument is not well-taken. For the reasons articulated above, Plaintiff’s discrimination and harassment claims survive the instant motion. Consequently, Defendants fail to establish that Plaintiff was not subjected to discrimination or harassment.

Accordingly, Defendants’ motion for summary adjudication of the fourth cause of action is DENIED.

E. Sixth, Seventh, and Eighth Causes of Action

In the sixth, seventh, and eighth causes of action, Plaintiff alleges claims for wrongful termination in violation of public policy and failure to promote in violation of public policy.

Defendants state that these causes of action rely on the same allegations that form the basis of Plaintiff’s FEHA claims. (Ds’ Mem. Ps. & As., p. 15:22-26.) Defendants conclude that “for all the reasons that [Plaintiff’s] FEHA claims fail as a matter of law, his duplicative public policy claim fails, as well.” (Ibid.)

Defendants’ argument is not well-taken. For the reasons previously stated, Plaintiff’s FEHA claims survive the instant motion. Consequently, Defendants fail to establish that there is no triable issue of material fact with respect to the sixth, seventh, and eighth causes of action.

Accordingly, Defendants’ motion for summary adjudication of the sixth, seventh, and eighth causes of action is DENIED.

F. Ninth Cause of Action

In the ninth cause of action for IIED, Plaintiff alleges that Bergeron “intentionally, and without justification[ ] harassed, embarrassed, and tormented Plaintiff by the actions including but not limited to those [alleged in the SAC], such as immediately upon his employment questioning him about his affections for Israel, unusually micromanaging his work in an attempt to create issue that did not exist[ ] so he could justify his efforts to terminate Plaintiff, excluding Plaintiff from important ceremonial company events and roles in order to shame and embarrass him, undermining Plaintiff’s work and his manager’s confidence and support of Plaintiff, and ultimately firing Plaintiff, not because of any justifiable reason, but because of [Bergeron’s] own bias and prejudice against Plaintiff because of his religion.” (SAC, ¶ 87.) Plaintiff further alleges that the foregoing conduct constitutes extreme and outrageous conduct, which caused him to suffer emotional distress. (Id., at ¶¶ 88-89.)

The elements of a cause of action for IIED are: (1) extreme and outrageous conduct by the defendant intended to cause, or done with reckless disregard of, the probability of causing emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Wilkins v. National Broadcasting Co., Inc. (1999) 71 Cal.App.4th 1066, 1087.)

Defendants argue that the ninth cause of action fails because Bergeron’s alleged conduct does not constitute sufficiently extreme or outrageous conduct as a matter of law. (Ds’ Mem. Ps. & As., pp. 16:20-17:27.) Defendants point out that even objectively offensive statements or conduct is inadequate, and Bergeron’s alleged conduct does not exceed all bounds tolerated in a civilized society. (Ibid.) Defendants further argue that Plaintiff “has not produced any evidence that [they] intended to cause him ‘severe or extreme emotional distress.’ ” (Id., at p. 18:1-23.) Finally, Defendants argue that Plaintiff did not actually suffer severe emotional distress. (Id., at pp. 18:24-19:27.) In support of their argument, Defendants points to discovery responses from Plaintiff stating that Plaintiff suffered emotional distress and stress. (Ds’ Mem. Ps. & As., p. 19:9-15; UMF No. 317.) Defendants also point to testimony by Plaintiff’s primary care physician, Dr. Mohammad Aleem, providing that he never treated Plaintiff for stress; his records did not reflect that Plaintiff made any complaints regarding significant stress in 2015 or 2016; and even if Plaintiff had complained to him of stress in a social setting, he would have documented it. (Ds’ Mem. Ps. & As., p. 19:16-27; UMF Nos. 318-326.)

Defendants’ undisputed material facts and evidence are sufficient to meet their initial burden as they demonstrate that Plaintiff did not actually suffer extreme or severe emotional distress. (See UMF Nos. 318-326.)

In opposition, Plaintiff states that he does “not contest … Defendants’ summary adjudication of his cause of action for intentional infliction of emotional distress.” (P’s Opp’n., p. 20, fn. 6.) Consequently, Plaintiff implicitly concedes that Defendant’s arguments have merit and he fails to raise a triable issue of material fact.

Accordingly, Defendants’ motion for summary adjudication of the ninth cause of action is GRANTED.